On a Saturday morning in March 2009, a young woman named Lily Haskell attended a peace rally in San Francisco to express her opposition to the Iraq war. During the course of the demonstration Haskell was arrested on suspicion of trying to help another protester, who was being held by police. Within hours Haskell was released. Although she was not charged with any crime, she was required to submit a DNA sample simply on the basis of her arrest.
Haskell is one of thousands of innocent individuals who have had their DNA forcibly collected, analyzed, and stored by police. She is the lead plaintiff in a class-action lawsuit filed by the ACLU of Northern California that seeks to put an end to a policy that requires anyone arrested for a felony to turn over their DNA. In recounting her experience she said, “Now my genetic information is stored indefinitely in a government database, simply because I was exercising my right to speak out.”
Rapid developments in technology—the Internet, cell phones, digital photography, and computer networks, among others—unquestionably have brought significant benefits to our daily lives. Yet these same technologies, applied in the form of warrantless wiretaps, e-mail monitoring, video surveillance, and data mining, threaten to trump our most basic freedoms of privacy, autonomy, and self-expression. Too often—and perhaps nowhere more in history than in this post-9/11 era—we have seen the government wield the power of technology to gain information about its citizens, placing the delicate balance of safety and freedom at risk.
A similar pattern is true for forensic DNA technology. Twenty years ago the FBI initiated a pilot project with a handful of states and local crime laboratories to create a shared database system of the DNA profiles of violent sex offenders. By the new millennium every state law-enforcement agency in the United States had DNA collection systems up and running and connected through the FBI’s system. Today more than 8 million people have had their DNA collected and permanently retained in this system, making the U.S. forensic data bank the largest in the world.
No one would deny that forensic DNA technology has brought significant benefits to law enforcement. Forensic DNA analysis has irrefutably contributed to the resolution of a number of crimes as well as to the exoneration of wrongfully convicted persons. But today’s national DNA data bank is a far cry from the one that was envisioned 20 years ago. Aggressive promotion of the DNA technology under the rubric of public safety, along with a gradual erosion of basic privacy and due process protections, has led us to a system where increasing numbers of innocent people are being identified, tracked, or monitored by way of their DNA. Forensic DNA technology has moved well beyond its initial role as an important tool for use in criminal investigation and has emerged instead as an instrument for surveillance that reaches broadly across the population to individuals who have never been charged or convicted of a crime.
How have we gotten to this point? What does it mean for civil liberties and the pursuit of justice? And where do we go from here? Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties seeks to answer these questions. Part I describes the history and expansion of DNA data banking in the United States and provides detailed analyses of some of the most controversial law-enforcement practices involving DNA that are used today, such as DNA dragnets, surreptitious DNA sampling, and arrestee testing. Part II focuses on comparative aspects with special emphasis on the United Kingdom, which has proceeded perhaps even more aggressively than the United States in building and maintaining its DNA data-banking system. Part III provides a thoughtful critique of society’s efforts to balance personal liberty, privacy, social equity, and security in the development and use of forensic DNA technology. After analyzing in detail the implications of forensic DNA data banking for privacy and racial justice, the underacknowledged issue of fallibility in DNA identification, and the uncertainties associated with DNA data-banking efficacy, the authors prescribe a series of principled recommendations for ensuring that decisions about the uses of DNA technology reflect a vision of justice where privacy, autonomy, and fairness are placed in the context of responsible criminal investigation.
Genetic Justice is highly accessible to the general reader while it also provides a wealth of legal analyses and policy discussions that will be highly informative to lawyers, policy makers, judges, and law-enforcement officers who want a comprehensive understanding of both the power of the technology as well as its technical and constitutional limitations. From this book a broad spectrum of readers will gain a deeper and more balanced appreciation of the issues involving forensic DNA databases.
This book emerged out of the collaborative efforts of two eminently qualified and distinguished experts, and I am especially proud that the ACLU played a significant role in its fruition. Tania Simoncelli, the ACLU’s first ever Science Advisor, brings to the book a mastery of scientific and technological aspects of genetic technologies together with their implications for civil liberties and social justice, as well as tremendous insights gained from her extensive advocacy work in this area. Sheldon Krimsky, who has published many important books in the areas of science and policy, was invited to the ACLU as a visiting scholar during 2007–2008, during which time the initial concept and research for the book took shape.
Genetic Justice should be read by everyone who cares about constitutional rights and criminal justice. We all want to solve crime. But the fact that crime occurs does not justify the erosion of principles that are at the core of our constitutional identity. One of the most fundamental principles of this country is that a balance must be retained between safety and freedom. Where technological developments challenge or disrupt that balance, a strong call for the protection of civil liberties and a clear, rational proposal for restoring the balance of personal liberty, social equity, and security are urgently needed. Genetic Justice will help you grapple with and perhaps make up your mind about where that balance should be.
Anthony D. Romero
Executive Director
American Civil Liberties Union